BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

IIMS College
Putalisadak, Kathmandu, Nepal

Name of Course Instructor: Binesh Maharjan

Course Code: Course Name: Business Law

Program Name: B Sc(HONS) Computing Semester: 9th Batch: September 2018

Assignment No: Tutorial 2 Assignment Type (Individual/Group): Individual

Assignment Title: Tutorial 2

Date of Allotment: Date of Submission:

Name of the Student ID number Contact Number Email

Binayak Lal Shrestha 1001852420 9860187299 binayakshrestha09@gmail.com

Evaluation: ________________________ obtained out of _____________________________________

Evaluator’s Comment:
_______________________________________________________________________________________
________
_______________________________________________________________________________________
________

-------------------------------------
Evaluator’s Signature & Date

Degree UCSI University Chapter 2- Tutorial

BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

Chapter 2 : Sources of Malaysian Law

1. When hearing cases, the courts are not just performing an act finding, they also interpret
statutes, although they do not make them.
Explain how statute can be interpreted.
(15 marks)
Ans: In Interpreting statutes, the courts are guided by:
 Interpretation acts
 Extrinsic materials
 Common law rules of statutory interpretation
 Precedent

There are three traditional rules of statutory interpretation and there:

 The literal rule
 The golden rule
 The mischief rules

The Literal rule: under the literal rule, the judge is required to consider what the
legislation actually says rather than considering what it might mean. In order to
achieve this end, the judge should give words in legislation their literal meaning –
that is, their plain, ordinary, everyday meaning – even if the effect of this is to
produce what might be considered an otherwise unjust or undesirable outcome.

The Golden rule: this rule is generally considered to be an extension of the literal
rule. In its general expression, it is used in circumstances where the application of the
literal rule is likely to result in what appears to the court to be an obviously absurd
result.

The Mischief rule: is clearly the most flexible rule of interpretation, but in its
traditional expression it is limited by being restricted to using previous common law
rules in order to decide the operation of contemporary legislation. In Heydon’s Case,
it was stated that in making use of the mischief rule, the court should consider the
following four things:

What was the common law before the passing of the statute?
What was the mischief in the law which the common law did not adequately deal
with?
What remedy for that mischief had Parliament intended to provide?
What was the reason for Parliament adopting that remedy?
Degree UCSI University Chapter 2- Tutorial
BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

2. Malaysia is a Federation of thirteen states with a written constitution and the Federal
Constitution, which is the supreme law of the country.
Based on the above statement, summarize Federal Constitutions in Malaysia.
(15 marks)
Ans: The Federal Constitution of Malaysia is considered as the supreme law in Malaysia. It
is actually formed after the Constitution of the Federation of Malaya. The Constitution of
the Federation of Malaya is the foundation of the Federal Constitution of Malaysia today.
The Federal constitution applies to all States in Federation laying down all the powers of
the Federal and State Governments. It enshrines the basic or Fundamental rights of the
individual which appear as Part P of the Federal Constitution entitled "Fundamental
Liberties". Which are:
Article 5 - Life and Liberty of the Person.
Article 6 - Prohibition of Slavery and forced labor
Article 7 - Protection against retrospective criminal and repeated trials.
Article 8 - Equality.
Article 9 - Prohibition of Banishment and freedom of movement.
Article 10 - Freedom of speech, assembly and association.
Article 11 - Freedom of religion.
Article 12 - Right to education.
Article 13 - Right to property.

3. One of the sources of Malaysian law is derived from unwritten law. Explain how
unwritten law forms part of the law of Malaysia.
(15 marks)

Ans: Unwritten Law is the portion of Malaysian law that is not written i.e. Law
which is not being enacted by parliament or the State assemblies and which is not
found in the written Federal and State Constitutions. Unwritten law consists of
English Law, judicial decision and customs.
Part of the laws of Malaysia is formed by the English Law. It can be found in
rules of equity and English Common Law. However, the application of the law is
subject for two limitations where it is applied only in the absence of local statutes on
particular matters and only part of the English law that is suited to local
circumstances will be applied.
Judicial decisions of the High Court, Court of Appeal and Federal Court was
known as Judicial Precedent which is the basic decisions made by judges in similar
situations. These courts were following the “doctrine of binding judicial precedent"
which means to stand by cases already decided. They use certain accepted principles
and they do not decide case arbitrary. Judges always contribute to the growth of
unwritten law in Malaysia.
Degree UCSI University Chapter 2- Tutorial
BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

Some customs of the local inhabitants such as Adat Perpatih, Adat

Temenggung and custom related to family law are given legal force by courts in this
country. In Sabah and Sarawak, land dealing over native customary lands and family
matters are applied by native custom-matters.

4. English common law and the rules of equity form part of the law of Malaysia. Discuss the
extent of the application of the English common law as applied in Malaysia today.
(15 marks)
Ans: The extent of the application of the English common law is discussed in Section 3 of
Civil Law Act. In Section 3 (1), it provides for the general application of English law. It
states that:

Save so far as other provision has been made or may hereafter be made by any written law
in force in Malaysia, the Court shall:

In West Malaysia or any part thereof, apply the common law of England and the rules of
equity as administered in England on the 7th day of April, 1956;

In Sabah, apply the common law of England and the rules of equity, together with statutes
of general application, as administered or in force in England on the 1st day of December,
1951;

In Sarawak, apply the common law of England and the rules of equity, together with
statutes of general application, as administered or in force in England on the 12th day of
December,1949, subject however to sub-section 3(ii):

Provided always that the said common law, rules of equity and statutes of general
application shall be applied so far only as the circumstances of the States of Malaysia and
their respective inhabitants permit and subject to such qualifications as local circumstances
render necessary.

In short, section 3(1) provides that the courts in Malaysia shall apply the common law as
well as rules of equity existing in England in the absence of written law on 7th April 1956
in West Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak.

Degree UCSI University Chapter 2- Tutorial

BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

5. State the similarities and differences between ‘legislation’ and subsidiary legislation’ in
Malaysia.
(10 marks)
Ans: Similarities:

The Similarities Between ‘Legislation’ and ‘Subsidiary Legislation’ are that both
are written law. Both of them must not contravene its principal or parent act or the
Constitution. Otherwise, it will be void. In the same time, Both of them are subject to the
Federal Constitution and not supreme which is made by parliament and have the legislative
effects.

Differences:
 Legislation are Laws enacted by parliament and State assemblies whilst Subsidiary
legislation are laws made by persons or bodies under powers conferred on them by acts of
Parliament or State Assemblies.

 Legislation is important as it is enacted by legislature whilst subsidiary legislation deals

with the details which govern everyday matters which legislature has delegated for them to
do so.

 Legislation has greater impact or force than subsidiary legislation.

6. Which sources of Malaysian law are the most important?

Give your reasons.
(15 marks)
Ans: In different country, there are different types of legal system. Some county practices a
combination of two or more legal systems which is known as mixed legal system while
some country practices only one type of legal systems. Malaysia practices the mixed legal
system which consists of the Customary Law, Islamic Law and Common Law. The sources
of Malaysian legal system law are from two different laws which are the Written and
Unwritten law.

Although Malaysia being Mixed Legal system in which all the above three laws are
included In mu opinion, the most important source of law is the Written Law which
comprises of The Federal Constitution, State Constitutions, Legislation and Subsidiary
Legislation. Malaysia have 13 states with a written constitution which is the Federal
Constitution. In another word, Written Law refers to the law stated in the Federal
Constitutions which is the supreme law of Malaysia and it enshrines the basic or
fundamental rights of the individual. The Federal Constitutions also stipulates the “Yang di-
Pertuan Agong" who owes his position to the Constitution and act according to it. If there is
two-thirds of majority of the total number of members of the legislature, the Constitution can
be change. The Federal Constitution consists of many Articles concerning religion of the
Degree UCSI University Chapter 2- Tutorial
 BG201-federation,
BUSINESS LAW MALAYSIAN
education, PERSPECTIVE
medicine and health, TUTORIAL
labor and social security, CHAPTER
welfare 2
of the
aborigines and many other related subjects.

Besides the Federal Constitution, every state has their own constitution regulating the
government of that state which is known as the State Constitution. The State Constitutions
consists of provision listed in the 8th schedule. The provision comprises the Ruler, the
Executive Council, the legislature and other related subjects like the Legislative Assembly,
financial provisions, State employees, and amendment of the Constitution. At the federal
level, laws are legislated by parliament and by state legislative assemblies at state level.

Parliament and the State Legislatures are not supreme. They have to enact law according to
the provision set out in the Federal and State Constitutions. Delegated Legislation is a
legislation made by individual or bodies under powers given on them by Act of Parliament.
It is important because the legislation made by Parliament and the state is not enough to give
the laws needed to govern everyday matters.

7. Is English common law applicable in Malaysia today? Discus.

Ans: Sections 3 and 5 of the Civil Law Act are provided for the use of English common law
where there was no Malaysian statute to deal with the case. Unlike laws enacted through the
legislature, the common law comprises principles and rules of action that are derived from
usages and customs, and court judgments which affirm and enforce these usages and
customs. Malaysian Courts apply English law existing on the specified dates, in practice the
courts still follow developments in English common law after such dates. English decisions
were based on the usages and customs followed by Malaysian Society pre-dating back to the
British Colonization. The Section 3 and 5 of civil Law act exists which supports the use of
English common Law in Malaysian judgements and hence the English common law are still
precedent.

Degree UCSI University Chapter 2- Tutorial

BG201- BUSINESS LAW MALAYSIAN PERSPECTIVE TUTORIAL CHAPTER 2

Degree UCSI University Chapter 2- Tutorial

 Chapter 2 : Sources of Malaysian Law

1. Sources of Malaysian law means the legal sources is taken from the legal rules that make
up the law in Malaysia. ( Yes / No)
Ans: Yes

2. The main sources of Malaysian law comprise written law, Islamic Law and International
law. (Yes/ No).
Ans: No

3. Unwritten law is the most important sources of law. (Yes/ No).

Ans:No

4. Written law is a law that made by Prime Minister of Malaysia. (Yes/ No.)
Ans: No

5. Portion of written law which including Federal and State Constitutions, Legislation and
Common law. (Yes / No).
Ans: Yes

6. Written law is also referred to as Statute Law .

7. The definition of written law stated as law made by parliament and any subordinate bodies
to whom parliament has delegated power to legislate.

8. Where statute of law and common law conflict, statute law will prevail to the extent of the
conflict.

9. List down what are FOUR (4) guideline using by courts in interpreting statutes?
Ans: List are as follows;
 Interpretation Acts
 Extrinsic materials
 Common Law rules of statutory interpretation
 Precedent

10. Give any THREE (3) reasons, why the written law is the most important sources of
Malaysian law?
Ans: Three reasons are as follows;
 It refers to laws found in the Federal and state constitutions, as well as in a code or
statute.
 Because the Malaysian legal system preserves many aspects of the English legal
system, the written laws are heavily impacted by them.
 The Federal Constitution, State Constitutions, Legislation, and Subsidiary
Legislation are all examples of written law.
11. Namely THREE (3) main approaches used by Courts in Malaysia to do interpretation of
statute of law.
Ans: Main approaches are as follows;
 Literal or plain meaning approach
 Golden rule approach
 Mischief approach

12. Interpret the following terms :

(a) Literal Approach

Courts assume that the legislature's intent and objective are clear in the statute to be
read. Because words often have many meanings, the courts must decide which method
should be used.

(b) Golden Rule Approach

Takes the simple sense of the language used within the statute and follows it. The
golden rule when it comes to interpreting statutes. Where an application of the literal rule
would result in absurdity, the golden rule of statutory interpretation can be used. The courts
may also consider a secondary meaning at this point.

(c) Mischief Rule Approach

The mischief or cause approaches are significantly different from the literal and
golden rule approaches in that they go outside the wording of the statute to determine the
Act's function.